What Is an Occupation Order and How Quickly Can I Get One?

An occupation order is a court order that regulates who can live in the family home. In serious cases it can require one party to leave the property entirely, even if they own it or are named on the tenancy. It is one of the most powerful orders available in family proceedings.

What Can an Occupation Order Do?

An occupation order can require one party to leave the family home and not return, restrict one party to a specific part of the property, exclude one party from a defined area around the home, require one party to allow the other to return to the property, and regulate how the property is used by either party.

Who Can Apply?

Occupation orders are available to associated persons under the Family Law Act 1996. This includes spouses and civil partners, cohabiting couples, former spouses or partners, family members, and parents. The legal test varies depending on the nature of the relationship between the parties.

What Does the Court Consider?

The court applies a balance of harm test. It weighs the harm likely to be suffered by the applicant and any children if the order is not made against the harm to the respondent if it is. Where the applicant or children are at risk of significant harm, the court must make an order unless the harm to the respondent would be as great or greater.

The court also considers the parties' housing needs and resources, their financial resources, the likely effect of any order on each party's health, safety and wellbeing, and the conduct of both parties.

How Quickly Can an Occupation Order Be Obtained?

In urgent cases, the court can grant an occupation order on a without notice basis, meaning the respondent does not attend the first hearing. This can happen within 24 to 48 hours of an application being filed. The court will only do this where the risk of harm is immediate and serious.

Where the application is urgent but not an emergency, the court will typically list a short-notice hearing within a few days.

Is an Occupation Order Enforced Criminally?

An occupation order does not carry automatic criminal sanctions for breach in the same way that a non-molestation order does. However, a power of arrest can be attached to an occupation order where there has been violence or threatened violence, which allows the police to arrest the respondent without a warrant if they breach the order. The court can also commit a respondent to prison for contempt if they breach the order.

Summary

An occupation order can require one party to leave the family home regardless of ownership or tenancy rights. It is available in urgent cases on a without notice basis within 24 to 48 hours. The court applies a balance of harm test and can attach a power of arrest where there has been violence. A specialist family law barrister can advise on whether an occupation order is appropriate and help prepare the application.

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